‘Gagging’ or Confidentiality

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Category: HR Alerts

‘Gagging orders’ have been in the news a lot recently. The Government has proposed limiting their use by councils and the NHS, who have been using them to prevent ‘whistle-blowing’ by ex-employees. The NHS have just published a sensible guide to employers. This explains how confidentiality clauses should feature in compromise agreements and how they can be used to protect confidential information gained by the employee such as information about other staff.

The Guide states that confidentiality clauses should not leave staff in any doubt about their right to speak up in the interests of patient safety and care.

Peter Stanway, our BackupHR legal expert comments:

There are two issues here – how to protect your legitimate interests surrounding commercial confidentiality and reputation and how to encourage staff and ex-employees to “blow the whistle” on undesirable practices.

All organisations should spell out clearly their requirements in relation to Disclosure of Information and Whistleblowing. Those policies should be reasonable and well written. If they are easy to understand then they can be enforced even after an employee leaves employment.

Unless there is an on-going dispute, when an employee leaves it is not normal to have any further agreement in place. If there is a dispute, however, a properly drafted compromise agreement should protect you against any further claim by the employee.

It is quite normal to make an agreed payment for further “confidentiality clauses” which can protect your reputation and thus prevent the details of the dispute becoming public.

This kind of agreement is usually legally enforceable. The question of whether the public sector should ever use such clauses is a matter of public policy. If you read behind the press headlines, it is clear that the Government are not seeking to prevent confidentiality clauses. But they are trying to stop situations where whistleblowing can be prevented by “compromising out” employees who have something to say just by offering large payments tied in with confidentiality clauses.

Preventing such “gagging” orders seems like a perfectly sensible and proportionate response.

The guidance provided in this article is just that – guidance. Before you take any action make sure that you know what you are doing, or call us for specific advice.

The consultation period for redundancies of 100 or more people has been halved from 90 to 45 days since 6th April 2013. This means that once collective consultation has ended and employers are ready to give formal confirmation of redundancy, notice of termination can expire 45 days earlier than before. This should lead to sizeable savings for employers needing to cut large numbers of jobs. Peter Stanway, our BackupHR legal expert comments:

There is a widespread misunderstanding that consultation periods on major redundancy exercises will be radically reduced by this change. In point of fact consultation conducted in good faith was always capable of ending before the 90 day limit and often did, however this was a grey area and the change is to be welcomed.

ACAS will be publishing a non-statutory code of practice to provide guidance on issues such as:

• when the consultation should start
• who should be consulted
• what should be discussed
• when the consultation shall be considered to be complete

The minimum consultation period where the employer is proposing to dismiss between 20 and 99 employees remains at 30 days.

The guidance provided in this article is just that – guidance. Before you take any action make sure that you know what you are doing, or call us for specific advice.

Revised guidance on the Fit Note has been given by the Government to GPs and doctors. This is to ensure judgments about fitness to work move away from job-specific assessments and focus on what a person can do, rather than what they can’t. Employers and patients can then use the Fit Note to help an individual back to work by looking at what changes could be made to their specific jobs and workplaces. The guidance clarifies that the fit note is about someone’s general fitness for work and is not tied to their most recent job, allowing flexibility to discuss what changes could help someone do some work.

Peter Stanway, our BackupHR legal expert comments:

Cynics may argue that the advice was necessary because many GPs had never really understood the change from sick to fit notes. This guidance does represent a shift in approach in asking GPs to be more flexible in their thinking and consider what their patient might be able to do, if they believe they are not yet ready to return to ‘their job’ straight away, but could do something. What is also required is the same flexibility from employers and employees to come back to a different job, different hours or whatever else works for both parties.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

Plans to restrict unfair dismissal cases at employment tribunals appear to have sparked an increase in claims, according to figures publicised by law firm EMW.

Some 15,300 claims were made in the quarter to September 2012, compared to 10,600 in the three months to June, as revealed by statistics from the Tribunals Service. Under the proposals, being introduced this summer, anyone looking to bring a claim for unfair dismissal will have to pay a £250 fee to make the claim and a further £950 if the case reaches court. Currently it is free to make a claim. Payouts for successful claims will also be capped at one year’s salary or £74,200, whichever is lower, as part of a raft of measures aimed at making it easier for firms to dismiss staff.

Peter Stanway, our BackupHR legal expert comments:

So have the fees and payout caps for claimants prompted a rush on cases?

We think this is a bit of misinformation. People have three months to put a claim in, so figures for last year are most unlikely to be anything to do with the charges and other restrictions being applied in 2013. We think it is more likely to be related to what was happening in business in 2012. Historically the figures have often been skewed by large numbers of claims particularly from trade unions in the public sector on specific issues such as equal pay.

It is likely that the fees will have some impact to reduce claims although our experience of Tribunals is that they are fuelled by emotion so unlikely to make a huge difference and we have also found that most government changes in employment law/practice are subject to the law of unintended consequences.

The guidance provided in this article is just that – guidance. Before you take any action make sure that you know what you are doing, or call us for specific advice.

Campaign group Intern Aware, which described unpaid internships as exploitative exclusive and often illegal00, then they are entitled to the minimum wage. Under the National Minimum Wage Act 1998, workers are required to be paid the national minimum wage, currently the adult rate is £6.19 per hour, which will increase in October of this year to £6.31 per hour.

Peter Stanway, our BackupHR legal expert comments:

Unfortunately the law is far from clear and such cases may actually reduce the number of employers prepared to ‘take on’ interns for genuine work experience placements for fear of being investigated by HMRC.

Our advice is that interns are likely to be classed as workers, and therefore they are entitled to the NMW particularly if they are:

•,doing substantive work
•,work for any reasonable length of time
•,cannot pick and choose their hours or their work (unlike a true volunteer, for example).

People who merely ‘work shadow’ will not be classed as workers.

In taking on interns, employers should ensure they are fully aware of their responsibilities, seek professional advice on the particular circumstances and put in place measures to minimise the risk of potentially significant claims and bad publicity.

The guidance provided in this article is just that – guidance. Before you take any action make sure that you know what you are doing, or call us for specific advice.

The Government’s plan to bring in the so-called ‘Protected Conversations’ appear to have gone by the wayside. Favoured is legislation setting out that settlement agreements and negotiations held prior to dismissal will not be allowed in evidence in unfair dismissal claims. The idea is to get around the difficulties over the use of the “without prejudice” label by having confidential negotiations before termination. The aim is to make an offer of settlement an acceptable option to employers and employees as a means of ending an employment relationship. This will extend the scope of the ‘without prejudice’ regime to situations where no formal dispute has yet arisen. Compromise agreements will be re-named as Settlement Agreements. Peter Stanway, our BackupHR legal expert comments:

This to be welcomed with a few notes of caution:

• It will not apply in cases where there has been ‘improper behaviour.’

• ACAS are consulting on a code of practice so the ‘rules’ are still not clear but are likely to include guidance on giving people a week’s notice in writing to consider the offer.

• The strict conditions that must be met could lead to lengthier exit discussions than is currently the case.

• It will not apply to cases of discrimination so can be referred to in proceedings

• It was proposed that this will come into force in the summer but it is now more likely to be October.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

A recent survey suggests that 80% of employers agree to the majority of flexible working requests from employees. Nevertheless employers are faced by the following problems when trying to implement flexible working policies in the following four areas:

• complexity of scheduling working hours (cited by 39% of employers)
• difficulty arranging meetings (36%)
• resentment from employees not working flexibly (23%)
• internal communication difficulties (21.%)

The findings come prior to the Government’s extension to all employees of the right to request flexible working, due to be introduced next year.

Peter Stanway, our BackupHR legal expert comments:

Our experience is that employers are not ready and struggle with the existing rights, never mind any extension of the law. Employers struggle for 5 reasons:

1. Some are just old-fashioned and inflexible.

2. They cannot easily work round the form of flexibility which their employees ‘expect’.

3. The currently defined process is difficult to understand and they have no audit trail.

4. The ‘new normal’ is to say yes, so they are afraid to be honest and say no.

5. They are not good at using the procedure to find a solution which works for both parties and do not think about a formal trial period.

We welcome the fact that the Government also intends to loosen the deadlines in the flexible working procedure to make them less prescriptive, with the emphasis moving to reasonableness. We are happy to advise employers on how to be legally compliant and find solutions which work for them.

The guidance provided in this article is just that – guidance. Before you take any action make sure that you know what you are doing, or call us for specific advice.

The introduction of RTI in April was described as the biggest shake-up of the PAYE system in 70 years. Pay details and any change in employee PAYE deductions have to be reported at the time staff are paid, rather than at the end of the year. The information needs to be sent electronically to HM Revenue and Customs. The Government claims it will initially operate a ‘light touch’ approach to penalties for failing to comply with the new system but you should be trying to get it right. According to the HMRC over 80 per cent of data quality problems are caused by holding the incorrect information about an individual’s name, date of birth or National Insurance number.

Peter Stanway, our BackupHR legal expert comments:

To help you get your data right, here are some practical tips:

• Provide the individual’s full and official forename(s) and not just their initial(s).
• Provide the correct date of birth, in the correct format.

To ensure the details you have are accurate, you should verify the information you need from an official source such as:

• HMRC and/or Department for Work and Pensions
• passport documentation
• birth certificate
• full UK driving licence (photo version)

Most importantly you should also be asking your employees to:

• Verify that the information you currently hold is correct.
• Inform them that they have an ongoing obligation to inform you of any change in their circumstances.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

Increasingly, we are advising clients on how to deal with employees’ remarks made on Facebook etc. Yet another case has made headlines after a Tribunal. A customer advisor at B&Q, with a good employment record, frustrated over a management instruction, made a number of comments on his Facebook page, including referring to his workplace as a “f****** joke”, and that he would soon be “doing some busting”. His page didn’t identify him as a B&Q employee. A colleague saw and reported the remarks as contrary to their social media policy.

He was later dismissed and subsequently complained of unfair dismissal. The Tribunal held that B&Q had concluded that “busting” could have referred to damage to property or injury to personnel and that he had breached B&Q’s social media policy which prohibits derogatory or inappropriate comments made online about the company. He had shown no remorse for his actions at any stage. The Tribunal concluded that his comments did not pose any threat to the business. The decision to dismiss was ‘outside the band of reasonable responses’. The dismissal was unfair, but he had contributed to it by making the comments and failing to show remorse, so his compensation was reduced by 50%.

Peter Stanway, our BackupHR legal expert comments:

The decision is a little surprising but does contain a number of lessons for employers:

• Decisions about discipline have to be balanced around employee rights and responsibilities, with a correct and proportionate approach.

• When taking the decision to discipline for online comments, focus on the actual effect the words have on the organisation and other employees as well as what is said.

• A final written warning may be a sufficient response to a one-off posting which is due to frustration by an employee, with a previously good record.

• If you don’t already have one, introduce a social media policy to your organisation to detail your expectations. The harder the line you intend to take on the use of social media, the greater your need to clarify what constitutes gross misconduct.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.

Certain employment-related measures were announced in the Queen’s Speech. In particular, a Deregulation Bill will repeal the Tribunal’s power to make recommendations in discrimination claims. The Immigration Bill will increase penalties for employers who employ workers lacking immigration status. The Bill will also exempt self-employed people from health and safety legislation where their work poses no harm to others. The Government aim to clarify the definition of apprenticeships and make them more mainstream. Creating a quality route into the world of work compared to the more traditional routes that have proved more costly and time-consuming. After a period when the Coalition has been introducing repeated changes to employment law, these changes represent a modest slackening of the Coalition’s pace of reform.

Peter Stanway, our BackupHR legal expert comments:

The appearance may be deceptive as there are various pieces of employment legislation finding their way through the parliamentary system already including;

• Settlement agreements
• Employee shareholder status
• The introduction of Tribunal fees
• A cap on compensatory awards for unfair dismissal
• Employment Tribunal procedural reform
• Reform of TUPE (Transfer of Undertakings)
• Shared parental leave and flexible working
• Acas early conciliation

Much detail, not least the timings of such reforms, remains to be published

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.